"When decisions are taken which appear inexplicable
or bizarre to the general public, it only reinforces the perception
that the system is not working to protect or in favour of the
vast majority of ordinary decent hard-working citizens in this
country."[17]

12. On 12 May The Sun newspaper launched a campaign
to persuade the Government to "rip up the Human Rights Act".

13. The Home Secretary appealed against part of Sullivan
J's judgment. In August the Court of Appeal dismissed the Home
Secretary's appeal. The Court of Appeal noted that the case "has
attracted a degree of opprobrium for those carrying out judicial
functions" and expressly commended Sullivan J for "an
impeccable judgment".[18]
It also pointed out that there had been ample time, in the six
years since the hijackers landed here, for the Home Secretary
to obtain appropriate Parliamentary authority for the powers which
he sought to give himself without parliamentary sanction.[19]

14. The Government's public reaction to the High
Court judgment suggested that the High Court had just decided
that the nine Afghan nationals could not be returned to Afghanistan
and that this was based on a perverse interpretation of human
rights law.

15. The decision that the Afghan nationals could
not be returned to Afghanistan was a decision taken, not by the
High Court on 10 May 2006, but by a panel of three Immigration
Adjudicators on 8 June 2004. The adjudicators held that they
found that the evidence was overwhelming that although the Taliban
had been defeated and were no longer in control of the country,
they were re-grouping and could pose a real risk to individuals
if they wish to target them. They found as a fact that there
was a real risk that the nine individuals would be targeted for
assassination by the Taliban if returned to Afghanistan. They
also found as a fact that there would not be sufficient protection
for them there against that risk if returned. They therefore
upheld their claim for humanitarian protection under Article 3
ECHR.[20]

16. The Adjudicators made these factual findings
after considering all the evidence in the case at a hearing which
lasted for eight days, including evidence from each of the individuals
who were cross-examined at length.

17. As the law then stood, the Home Secretary had
a statutory right of appeal to the Immigration Appeal Tribunal
against the adjudicators' decision on the ground that it was based
on an error of law.[21]
For these purposes, reaching a decision based on perverse findings
of fact is an error of law. The Home Secretary applied to the
Immigration Appeal Tribunal for permission to appeal against the
Adjudicators' decision. The Tribunal refused the Home Secretary
permission to appeal, on the basis that the Adjudicators were
entitled to reach the findings they did. The Home Secretary then
had the further option of applying to the High Court for judicial
review of the Tribunal's refusal of permission, but chose not
to do so.

18. The Adjudicators' decision was not based on any
controversial interpretation of either Article 3 ECHR or of the
Human Rights Act. The decision of the Adjudicators was based
on factual findings, arrived at after a full consideration of
the evidence in the case. The appellate tribunal refused permission
to challenge those findings. The Home Secretary did not avail
himself of the further avenue of a challenge by way of judicial
review. In other words, the judicial processes for the determination
of the factual questions which are at the heart of an Article
3 ECHR claim have taken their course, and there appears to be
no grounds on which to complain that the Adjudicators made perverse
factual findings or applied a perverse interpretation of Article
3 ECHR. The judicial process of fact finding having run its course,
we cannot see how it is possible to criticise the decision without
at the same time advocating deportation to face a real risk of
torture or death.

19. We think it is also important to point out that
this is not a case about threats to national security or public
safety. It was accepted by the Government at the hearing before
the Immigration Adjudicators that there were no reasonable grounds
for regarding any of the individuals as a danger to the security
of the UK, nor as constituting a danger to the community of the
UK. This was confirmed by the Home Office on the day of the High
Court judgment. The nine individuals had all been convicted of
various offences relating to the hijacking, but their convictions
were overturned by the Court of Appeal on the basis that the jury
had been misdirected on the issue of the defence of duress. All
but two of the individuals had by then served their sentences
in full and the Court of Appeal did not order a retrial.

20. In view of the criticisms made of the High Court
judge by the Prime Minister and the Home Secretary, and the Lord
Chancellor's statutory duty to uphold the independence of the
judiciary,[22] we asked
the Lord Chancellor whether he regarded the decision of Sullivan
J. in the High Court as "bizarre and inexplicable" or
"impeccable". The Lord Chancellor said that the answer
to the question whether people who hijacked should be able to
remain here was that if they faced death or torture or something
similar abroad then the law is that they should remain, and that
the question of a balance did not arise because they posed no
threat to this country.[23]
He said he was not seeking to challenge the Adjudicators' decision
in 2004, and that, although there may come a time when it was
safe for them to return to Afghanistan, he was not aware of any
evidence contrary to the previous findings.[24]

21. We welcome the Lord Chancellor's unequivocal
acceptance of the correctness of the original decision in the
Afghani hijackers case as a clear application of the requirement
of human rights law that prevents deportation where the person
faces death or torture or "something similar". In our
view high level ministerial criticisms of court judgments in human
rights cases as an abuse of common sense, or bizarre or inexplicable,
only serves to fuel public misperceptions of the Human Rights
Act and of human rights law generally.

23. The new Home Secretary, Dr Reid, said in a newspaper
article on 7 May: "the vast majority of decent, law-abiding
people believe that it is wrong if court judgments put
the human rights of foreign prisoners ahead of the safety of UK
citizens. They believe that the Government and their wishes are
often thwarted by the courts. They want the deportation for foreign
nationals [sic] to be considered early in their sentence, and
are aware that this was overruled by the courts".[26]

24. Referring to the Government's proposals to change
the system for deportation of foreign prisoners, the Prime Minister
said in the House of Commons on 17 May: "in the vast bulk
of cases there will be an automatic presumption to deport,
and the vast bulk of those people will, indeed, be deported, irrespective
of any claim that they have that the country to which they are
returning may not be safe. That is why it is important that we
consider legislating, if necessary, to ensure that such an automatic
presumption applies. Yes; we will make sure that our human
rights legislation does not get in the way of commonsense legislation
to protect our country."[27]

25. Under the ECHR the UK is under obligations not
to deport a foreign national to torture under Article 3 and not
to deport where this would be a disproportionate interference
with their family life under Article 8 ECHR (e.g. if they had
lived most of their life in this country, all of their family
and other connections were in this country, and they had no family
or other connections in the receiving State). The Human Rights
Act gives effect to these obligations by enabling a would-be deportee
to challenge their deportation on those grounds in a UK court.
We are not aware, however, of any examples in such cases of rulings
by UK courts which overrule the Government in a way that is inconsistent
with other EU countries' interpretation of the ECHR,[28]
which was the Prime Minister's concern in his published letter
to the Home Secretary, or which go further than the case-law of
the European Court of Human Rights.[29]
We therefore do not accept that the Human Rights Act, or its
interpretation by UK courts, present any greater obstacle to the
deportation of foreign nationals than the limitations on such
deportations which already exist under the ECHR itself.

26. We asked the Lord Chancellor and Baroness Scotland
whether they were able to provide any evidence that the Human
Rights Act or its interpretation by decision-makers, as opposed
to administrative error, were responsible for the failure to consider
whether foreign prisoners should be deported on their release.
Both were unequivocal that the Human Rights Act was not responsible
for the failure to consider over 1,000 foreign prisoners for deportation.[30]

27. We welcome the unequivocal acceptance of the
Lord Chancellor and Baroness Scotland that neither the Human Rights
Act itself nor any misinterpretation or misunderstanding of it
by officials was in any way responsible for the failure to consider
foreign nationals for deportation. However, we regret that the
opposite impression was earlier given by both the Prime Minister
and the Home Secretary. We repeat our view that unfounded criticism
of the Act from a high level within Government only serves to
perpetuate the misunderstandings and misperceptions about the
Act amongst the wider public.

29. The Bridges Report also finds, however, that
one of the reasons why the Parole Board underestimated the risk
of harm to others when it decided that he was safe to release
was that from the time of his transfer to open conditions in 2001
"the people managing his case started to allow public protection
considerations to be undermined by its human rights considerations,
as these required increasing attention from all involved, especially
as the prisoner was legally represented."[33]
In a number of subsequent places in the report, further reference
is made to it being an increasingly challenging task for people
who are charged with managing offenders effectively to ensure
that public protection considerations are not undermined by "the
human rights considerations".[34]

30. The DCA's review of the implementation of the
HRA describes the Anthony Rice case as an example of a "misunderstanding
of human rights considerations", and claims that the Chief
Inspector of Probation found in his report on the case that the
HRA is being misapplied, notably by allowing a prisoner, whether
himself or through his lawyers, to "shift the focus of consideration
onto the proportionality of the restrictions to which he is subject,
at the expense of assessment of the risk of harm he presents".[35]
The DCA Review attributes a clear causal link between these misunderstandings,
misinterpretations and misapplications and the death of Naomi
Bryant. It states, for example , that "the result of this
[misinterpretation of the effect of the Convention rights] can
either be simple inefficiency or frustration or tragedy,
as in the case of Anthony Rice",[36]
and that "human rights considerations have perhaps nowhere
been more tragically misapplied than in the case of Anthony Rice".[37]
In his major speech on human rights delivered to the Human Rights
Lawyers Association on 29 September the Lord Chancellor repeated
these assertions, saying, for example, that "The events surrounding
the Anthony Rice case provide a very conspicuous and sobering
example of the operational problems which have arisen for key
agencies as a result of misconceptions and misunderstanding".

31. We accept that it would be a matter of serious
concern if there were evidence to demonstrate that those responsible
for making decisions about the release of potentially dangerous
prisoners, and for managing offenders, were interpreting the Human
Rights Act in such a way as to undermine public safety. We therefore
looked very carefully at the Chief Inspector's Report to identify
precisely any evidence that this happened at the relevant decision-making
points in relation to Anthony Rice, in particular at the time
of his release on licence and when deciding the conditions to
which he should be subject on release.

32. We were unable to find any concrete evidence
in the Report itself that any decision concerning the release
or management of Anthony Rice was affected in any way by human
rights considerations being given precedence over public protection.
There is nothing in the Report to indicate the role played by
human rights arguments at the oral hearing of the Parole Board
panel on 17 August 2004 at which the decision was taken to release
Anthony Rice on licence once appropriate conditions had been finalised.[38]
The Report mentions that in the period between that decision
and his release on licence the Lifer Review and Recall Section
of the Home Office were concerned that the conditions in his licence
"might be excessively restrictive in terms of the Human Rights
Act".[39] But,
significantly, the Report goes on to state that "the advice
offered to the Parole Board highlighted the fact that the Act
allows for interference with the rights of an individual where
this is necessary for public safety and the protection of the
rights of others."

33. It therefore appeared to us that the concern
repeated throughout the Report, that human rights considerations
may be undermining public protection, is more in the nature of
a general concern than one based on clear findings that human
rights arguments were determinative of particular decisions leading
to Anthony Rice being released on licence and managed in such
a way that he was not prevented from murdering Naomi Bryant.
Indeed, it seemed clear from the Report that it was a combination
of a lengthy catalogue of other failures which was responsible
for the mistaken decision to release Anthony Rice, rather than
any prioritising of human rights considerations over public safety.

34. We therefore decided to write to Mr. Bridges
for clarification.[40]
We asked if he could let us know precisely what information contained
in his report he considers supports his finding that from 2001
"the people managing [Anthony Rice's] case started to allow
public protection considerations to be undermined by its human
rights considerations, as these required increasing attention
from all involved, especially as the prisoner was legally represented".
We asked whether he had any further evidence, over and above
that already contained in the report, to support that view. We
also asked if he could provide any evidence that at the principal
decision-making points in the management of Rice's case, including
at the time of his release on licence and in deciding the conditions
to which he should be subject on release, human rights considerations
had the effect described in the report, and whether in Mr. Bridges'
view this was because of a correct or incorrect interpretation
of the requirements of the HRA by the relevant decision-makers.

35. In his reply Mr Bridges himself points out that
his report "made no comment about the Human Rights Act itself"
and that it was a huge distortion of his report's findings to
say that Rice was released in order to meet his human rights.[41]
He also says, significantly, that he did not think that decision-makers
are interpreting the Act wrongly, and that in his experience the
great majority of case managers are either fully aware that the
HRA does not prevent them from carrying out their public protection
responsibilities or would at least know whom to consult to check.
He has no doubt that Parole Board members and staff have a proper
understanding, in principle, of how to implement their public
protection duties while complying with human rights considerations.
He says the report's comments on the impact of human rights considerations
on the decision-making process were much more subtle, relating
to the practical circumstances in which case officers found themselves.
He says that

"In broad terms our Finding is based on us discovering
plenty of evidence of [case officers] discussing the [proportionality
of restrictions on Mr Rice], and relatively little of them discussing
[how to manage them effectively]. Following our discussions with
the people involved we took the view that the attention of the
relevant officers was constantly drawn away from the latter towards
the former. We used the term 'distracted' to describe this, and
as it happens this appears to have been accepted by the people
involved as a fair interpretation."

36. We therefore asked the Lord Chancellor whether
he now accepted, in the light of Mr. Bridges' letter, that his
report does not demonstrate that the Rice case is an example of
a tragic misapplication of human rights considerations, or of
any misinterpretation or misunderstanding of the HRA or the European
Convention on Human Rights ("ECHR") by officials. The
Lord Chancellor was very candid in his response, saying that he
found Mr. Bridges' letter "very disappointing in the context
of his report".[42]
He accepted that Mr. Bridges' letter seems "difficult to
align with what he says in his report". In the Lord Chancellor's
view, the Chief Inspector's report on the Rice case was clear
that the Chief Inspector was "concerned that officials involved
in the decision in the Anthony Rice release question were distracted
by human rights considerations". His letter, by comparison,
was, in the Lord Chancellor's view, "opaque", "very
difficult to follow" and did not throw much light on the
issue. The Lord Chancellor thought that the Government had to
go on the basis of what the Chief Inspector had said in his report,
not because what he had said in the letter should be ignored,
but because the report raised a particular issue which needed
to be addressed, namely the risk that officials were being distracted
from public safety considerations by focusing too much on human
rights considerations. He therefore did not resile from the Government's
response to the Rice report, which was to issue proper guidance
underlining that public safety comes first. We welcome the
Government's readiness to take action to correct apparent misunderstanding.

37. However, in our view, Mr Bridges' letter raises
serious questions about the reliance placed on his report in both
the DCA Review and the Lord Chancellor's speeches and interviews.
First, in our view it makes clear that there was no clear causal
connection between any interpretation or application of the HRA
and the death of Naomi Bryant, because Rice was not in fact released
"in order to meet his human rights". The assertion
that the tragic death of Naomi Bryant was therefore caused by
officials misinterpreting the HRA therefore is not made out.
Second, in our view Mr. Bridges' letter also makes clear that
the Rice Report does not demonstrate that officials misunderstood,
misinterpreted or misapplied the Human Rights Act or the ECHR
in any way. According to its author, the Rice Report raises much
more subtle issues about the "practical processes" by
which public safety considerations may be affected by human rights
considerations.

38. In our view, if the Bridges report demonstrates
anything, it is the need for fuller investigation, not of whether
officials in the criminal justice system are prejudicing public
safety through misunderstandings or misapplications of the Act,
but of precisely what Mr. Bridges means by the "subtle processes"
to which the HRA gives rise which somehow lead to public safety
considerations being given too little weight. The precise way
in which Mr. Bridges says that human rights considerations undermine
public safety considerations is certainly subtle: it is far from
self-evident that because the proportionality of restrictions
was more discussed than management of Rice's risk of harm the
former must have distracted attention from the latter. It is
possible that the passages in the Rice report which ignited the
controversy are the product of a misunderstanding of the HRA by
Mr. Bridges himself, in that he maintains a dubious antithesis
between human rights considerations and public protection considerations,
which does not acknowledge that, properly understood, public protection
forms a crucial part of an overall human rights perspective in
cases such as those of Anthony Rice.

39. In our view, while we agree with the Lord
Chancellor's view that it would have been completely wrong for
the Government simply to ignore what was said in the Report of
the Chief Inspector of Probation,[43]
we strongly disagree that the Chief Inspector's Report contains
any real evidence that public safety is being prejudiced by officials'
misinterpretations or misapplications of the HRA.

41. We welcome the Lord Chancellor's candour in acknowledging
that "maybe we were not quite quick enough to spot the absence
of human rights issues in relation to all three of the issues".[46]
We also accept that, in the circumstances, in which there was
considerable public debate about whether the HRA was responsible
for various failings, a thorough but expeditious review of the
operation of the Act was "the right course for a responsible
government."[47]
We must, however, draw to Parliament's attention the extent
to which the Government itself was responsible for creating the
public impression that in relation to each of the three highly
contentious issues under consideration it was either the Human
Rights Act itself or misinterpretations of that Act by officials
which caused the problems. In each case, very senior ministers,
from the Prime Minister down, made assertions that the Human Rights
Act, or judges or officials interpreting it, were responsible
for certain unpopular events when, as we have shown above, in
each case these assertions were unfounded. Moreover, when those
assertions were demonstrated to be unfounded, there was no acknowledgment
of the error, or withdrawal of the comment, or any other attempt
to inform the public of the mistake. We very much welcome the
Lord Chancellor's assurance that there is now an unequivocal commitment
to the Human Rights Act right across the Government but, in our
view, public misunderstandings of the effect of the Act will continue
so long as very senior ministers fail to retract unfortunate comments
already made and continue to make unfounded assertions about the
Act and to use it as a scapegoat for administrative failings in
their departments.